New legislation about [[patentable subject matter]] is to expected in '''Australia''' in "late 2010".<ref>{{cite web|url=http://www.acip.gov.au/reviews.html#subject|title=Review of Patentable Subject Matter|quote=ACIP expects to provide a final report to the Australian Government in late 2010.}}</ref> A [[Australian consultation responses 2009|recent consultation]] suggests the legislation proposed will be very bad.

New legislation about [[patentable subject matter]] is to expected in '''Australia''' in "late 2010".<ref>{{cite web|url=http://www.acip.gov.au/reviews.html#subject|title=Review of Patentable Subject Matter|quote=ACIP expects to provide a final report to the Australian Government in late 2010.}}</ref> A [[Australian consultation responses 2009|recent consultation]] suggests the legislation proposed will be very bad.

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The next steps will include a formal petition to the Australian House of Representatives (required to be on paper with original signatures).

The next steps will include a formal petition to the Australian House of Representatives (required to be on paper with original signatures).

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==Types of patent in Australia==

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==Innovation patents==

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In Australia, there are two types of patent. There are normal patents, and "innovation patents". The latter are minimally examined (which lead to someone getting a patent on the wheel<ref>http://www.newscientist.com/article/dn965-wheel-patented-in-australia.html</ref><ref>http://edition.cnn.com/2001/WORLD/asiapcf/auspac/07/02/australia.wheel/</ref>), but these are not the normal, main category of patents.

+

In Australia, there are two types of patent. There are normal patents, and "[[innovation patents]]". The latter are minimally examined (which lead to someone getting a patent on the wheel<ref>http://www.newscientist.com/article/dn965-wheel-patented-in-australia.html</ref><ref>http://edition.cnn.com/2001/WORLD/asiapcf/auspac/07/02/australia.wheel/</ref>), but these are not the normal, main category of patents.

==Legislation==

==Legislation==

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<blockquote>

<blockquote>

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:''is a manner of manufacture within the meaning of section 6 of the Statute of Monopolies;''

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is a manner of manufacture within the meaning of section 6 of the Statute of Monopolies;

</blockquote>

</blockquote>

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<blockquote>

<blockquote>

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''6 (a ). Provided also, that any declaration before mentioned shall not extend to any letters patents (b ) and grants of privilege for the term of fourteen years or under, hereafter to be made, of the sole working or making of any manner of new manufactures within this realm (c ) to the true and first inventor (d ) and inventors of such manufactures, which others at the time of making such letters patents and grants shall not use (e ), so as also they be not contrary to the law nor mischievous to the state by raising prices of commodities at home, or hurt of trade, or generally inconvenient (f ): the same fourteen years to be acccounted from the date of the first letters patents or grant of such privilege hereafter to be made, but that the same shall be of such force as they should be if this act had never been made, and of none other (g ).''

+

6 (a ). Provided also, that any declaration before mentioned shall not extend to any letters patents (b ) and grants of privilege for the term of fourteen years or under, hereafter to be made, of the sole working or making of any manner of new manufactures within this realm (c ) to the true and first inventor (d ) and inventors of such manufactures, which others at the time of making such letters patents and grants shall not use (e ), so as also they be not contrary to the law nor mischievous to the state by raising prices of commodities at home, or hurt of trade, or generally inconvenient (f ): the same fourteen years to be acccounted from the date of the first letters patents or grant of such privilege hereafter to be made, but that the same shall be of such force as they should be if this act had never been made, and of none other (g ).

Australia has a "Free Trade Agreement" (FTA) with the [[USA]], which includes requirements about what is [[patentable subject matter]], but this does not pose any legal problem. The words used are identical to the [[TRIPS]] agreement (Art 27), which Australia has also signed, so nothing is changed by this agreement. The relevant part of the FTA is Art 17.9, paragraph 1:<ref>http://www.dfat.gov.au/trade/negotiations/us_fta/final-text/chapter_17.html</ref>

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==How the patent office interprets the legislation==

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<blockquote>

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[...] shall make patents available for any invention, whether a product or process, in all fields of technology, provided that the invention is new, involves an inventive step, and is capable of industrial application

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</blockquote>

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Like with the TRIPS agreement, there is no definition of "technology", so the Australian government can define that writing software, like writing a book, is not a "field of technology". This issue was looked at in detail during the years of lobbying on the [[EU software patents directive]] and didn't prevent the [[European Parliament]] from voting amendments which completely excluded software from patentability.

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==Patent office case law==

The patent office of Australia is [http://www.ipaustralia.gov.au/patents/index.shtml IP Australia], and they grant software patents.

The patent office of Australia is [http://www.ipaustralia.gov.au/patents/index.shtml IP Australia], and they grant software patents.

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<blockquote>

<blockquote>

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''A patent may be granted for a device or machine, a substance, a process or computer hardware and software, and even some business methods—in short, almost anything commercially useful. For a patent to be granted an invention must [...] be a manner of manufacture. A patent may be granted only for a tangible invention. No matter how ingenious or unusual they may be, you cannot patent artistic creations, mathematical models, theories, ideas or purely mental processes;''

+

A patent may be granted for a device or machine, a substance, a process or computer hardware and software, and even some business methods—in short, almost anything commercially useful. For a patent to be granted an invention must [...] be a manner of manufacture. A patent may be granted only for a tangible invention. No matter how ingenious or unusual they may be, you cannot patent artistic creations, mathematical models, theories, ideas or purely mental processes;

</blockquote>

</blockquote>

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<blockquote>

<blockquote>

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''Your invention must ... be a 'manner of manufacture'. It includes any device, substance, method or process, but it excludes artistic creations, mathematical methods, plans, schemes or other purely mental processes;''

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Your invention must ... be a 'manner of manufacture'. It includes any device, substance, method or process, but it excludes artistic creations, mathematical methods, plans, schemes or other purely mental processes;

</blockquote>

</blockquote>

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According to the Australian legal website iLaw, software ideas are patentable if they have a ''"commercially useful effect"''.<ref>http://www.ilaw.com.au/public/patentsarticle.html</ref>

According to the Australian legal website iLaw, software ideas are patentable if they have a ''"commercially useful effect"''.<ref>http://www.ilaw.com.au/public/patentsarticle.html</ref>

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==Case law==

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===More info===

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In 1991, the patent commissioner rejected a [[software patent]] application on the grounds that it was mathematics. On December 13 1991, Federal Court judge Burchett disagreed and said this patent was indeed valid.<ref>http://progfree.org/Newsletter/programming.freedom.7.html#legal</ref>

In 1992, a regional court upheld an [[IBM]] patent on ''"rendering curved images on computer displays"''. This decision was upheld by a federal court in 1994.<ref>http://www.ilaw.com.au/public/patentsarticle.html</ref>

+

An Australian [[patent lawyer]] describes the patent office's Deputy Commissioner Phil Spann as "''perhaps not especially averse to software patents, unless they happen to involve ‘business methods’''"<ref>http://blog.patentology.com.au/2012/05/bickering-about-software-patents-misses.html</ref> and points to reviews of four of his decisions at the Hearing Office in 2012: [http://blog.patentology.com.au/2011/08/australian-patent-office-shoots-down.html], [http://blog.patentology.com.au/2011/01/psychological-analysis-unpatentable.html], [http://blog.patentology.com.au/2010/11/lotto-prize-schemes-not-patentable-says.html], [http://blog.patentology.com.au/2010/07/method-for-commercialising-patentable.html].

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The UK 2006 ruling on [[Aerotel v. Telco]] mentions: ''"See Grant v Commissioner of Patents [2006] FCAFC 120m July 17th 2006 where the Federal Court of Appeal refused a patent for a method of protecting assets from bankruptcy involving the setting up of a trust, a gift to the trust, and a loan back with the trustee taking a charge on the loan."''

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==Case law==

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{{main|Case law in Australia}}

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==Related pages on {{SITENAME}}==

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* [[CSIRO wifi patent]]

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== Australian campaign outline ==

== Australian campaign outline ==

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We have agreed to not yet target the non-technical public in our campaign, ie. no TV ads for now.

We have agreed to not yet target the non-technical public in our campaign, ie. no TV ads for now.

A little later some guys created an application <cant remember name> that displayed movies, allowed food choices, let you gamble and play games and ran inside a browser. Bill Gates used it as the main demonstration application at the official announcement of IE4 ... I think they even built a mock-up plane to demo it in. It was subsequently used by a number of airlines. probably was one of the really early in-plane entertainment systems. It was probably 1996 ish as the release was in 97 per wikipedia.

+

A little later some guys created an application <cant remember name> that displayed movies, allowed food choices, let you gamble and play games and ran inside a browser. [[Bill Gates]] used it as the main demonstration application at the official announcement of IE4 ... I think they even built a mock-up plane to demo it in. It was subsequently used by a number of airlines. probably was one of the really early in-plane entertainment systems. It was probably 1996 ish as the release was in 97 per wikipedia.

In 2004, the government body Australian Law Reform Commission recommended a review of the current law which relys on the poorly defined "manner of manufacture" test. Another government body, Advisory Council on Intellectual Property (ACIP) held a public consultation on patentable subject matter) from September to November 2009. (analysis: Australian consultation responses 2009) According to the working group secretary Geoff Sadlier, the working group meet again in early December 2010 before expecting the final report to be delivered in February 2011.

Bad news: the patent office already grants them and the courts already uphold them (see below)

Signatures are now being collected on a paper petition. The petition will be available for signing at software events and also available as PDF to be returned by post (Parliamentary requirements dictate that petition must be on paper with original signatures). Download a copy from http://endsoftpatents.org/australia.

During July and August 2010, electronic signatures were collected on a letter to Senator Kim Carr calling for software patents to be abolished in Australia.

On 11 August 2010, the letter with 1000 signatures was sent to Senator Kim Carr (Minister for Innovation, Industry, Science and Research), Richard Marles (Parliamentary Secretary for Innovation and Industry) and Geoff Sadlier (Secretary for Advisory Council on Intellectual Property ACIP).

A response was received later that month from Philip Noonan (Director General, IP Australia) on behalf of Senator Carr and the ACIP. The response is mostly factual, though acknowledges the lack of awareness about the public consultation and suggests that further consultation may be possible.

The next steps will include a formal petition to the Australian House of Representatives (required to be on paper with original signatures).

In Australia, there are two types of patent. There are normal patents, and "innovation patents". The latter are minimally examined (which lead to someone getting a patent on the wheel[3][4]), but these are not the normal, main category of patents.

Section 6 of this statute mentions manner of manufacture, but it doesn't give much information on what this means:

6 (a ). Provided also, that any declaration before mentioned shall not extend to any letters patents (b ) and grants of privilege for the term of fourteen years or under, hereafter to be made, of the sole working or making of any manner of new manufactures within this realm (c ) to the true and first inventor (d ) and inventors of such manufactures, which others at the time of making such letters patents and grants shall not use (e ), so as also they be not contrary to the law nor mischievous to the state by raising prices of commodities at home, or hurt of trade, or generally inconvenient (f ): the same fourteen years to be acccounted from the date of the first letters patents or grant of such privilege hereafter to be made, but that the same shall be of such force as they should be if this act had never been made, and of none other (g ).

Australia has a "Free Trade Agreement" (FTA) with the USA, which includes requirements about what is patentable subject matter, but this does not pose any legal problem. The words used are identical to the TRIPS agreement (Art 27), which Australia has also signed, so nothing is changed by this agreement. The relevant part of the FTA is Art 17.9, paragraph 1:[5]

[...] shall make patents available for any invention, whether a product or process, in all fields of technology, provided that the invention is new, involves an inventive step, and is capable of industrial application

Like with the TRIPS agreement, there is no definition of "technology", so the Australian government can define that writing software, like writing a book, is not a "field of technology". This issue was looked at in detail during the years of lobbying on the EU software patents directive and didn't prevent the European Parliament from voting amendments which completely excluded software from patentability.

The patent office of Australia is IP Australia, and they grant software patents.

The Australian patent office says that the "means of manufacture" definition allows the granting of patents for schemes or plans if "there is a means for putting the scheme or plan into effect."[6] Two examples are given[7]:

A method of analysing business performance by operating a computer system to set specified parameters and thresholds in accordance with preselected criteria and to compare business performance against the parameters and thresholds.

A method of raising funds by seeking sponsors to donate products, and programming a computerised random number generator to operate in a specified way to conduct a raffle of those products.

Another document from the patent office says:

A patent may be granted for a device or machine, a substance, a process or computer hardware and software, and even some business methods—in short, almost anything commercially useful. For a patent to be granted an invention must [...] be a manner of manufacture. A patent may be granted only for a tangible invention. No matter how ingenious or unusual they may be, you cannot patent artistic creations, mathematical models, theories, ideas or purely mental processes;

Your invention must ... be a 'manner of manufacture'. It includes any device, substance, method or process, but it excludes artistic creations, mathematical methods, plans, schemes or other purely mental processes;

An Australian patent lawyer describes the patent office's Deputy Commissioner Phil Spann as "perhaps not especially averse to software patents, unless they happen to involve ‘business methods’"[9] and points to reviews of four of his decisions at the Hearing Office in 2012: [2], [3], [4], [5].

Application that ran on PCs and Macs that let you configure Pathworks networks on DEC Vax machines ... was promoted around the world then killed by DEC for their own purposes. It was a very early graphical application.

TDMS was a screen building set of libraries? which ran on Vaxes. When DEC moved to risc it ceased to function. people at Praxa reversed engineered it sohehow - probably assisted by DEC and created an emulator for it to run on risc. it was used in some large corporates all round the world .. maybe still is.

A little later some guys created an application <cant remember name> that displayed movies, allowed food choices, let you gamble and play games and ran inside a browser. Bill Gates used it as the main demonstration application at the official announcement of IE4 ... I think they even built a mock-up plane to demo it in. It was subsequently used by a number of airlines. probably was one of the really early in-plane entertainment systems. It was probably 1996 ish as the release was in 97 per wikipedia.